57
Second working session — The impact
purchase of sovereign bonds of Member States under certain conditions on
the secondary market (OMT-program) (
4
).
To understand the meaning and the scope of the concept of autonomy as
developed by the ECJ since
Van Gend
(infra II.) will allow some deeper reflec-
tion on these practical questions of its application (infra III.).
2.
Meaning and Scope of the concept of Autonomy
The concept of autonomy became a cornerstone of the Union legal order;
it contributed substantially to the determination of the relationship of EU law
with both national and international law. At the same time it was and still is
one of the most controversially discussed issues in EU law.
In short, it seems to break up the traditional divide between national and
international law by adding a new category of law. Since
Van Gend
the estab-
lished case-law of the ECJ states that the EU legal order is distinct from the
international legal order – the reference to international law in
Van Gend
has
never been used again – and that EU law is distinct from national law, too (
5
).
It must even be given primacy over national law by all institutions exercis-
ing public authority within the Union. As such it governs the relationship of
Union law to the law of the Member States. The modalities have to be clarified
(infra 1.) before the concept of ‘external’ autonomy is explained as developed
by the Court with regard to international agreements of the EU (infra 2.).
(
4
) GFCC, case 2 BvR 1390/12; 2 BvR 1421/12; 2 BvR 1438/12; 2 BvR 1439/12; 2 BvR 1440/12; 2
BvR 1824/12; 2 BvE 6/12.
(
5
) In Case 26/62
Van Gend en Loos,
the ECJ qualifies Community law as a ‘new legal order of
international law for the benefit of which the states have limited their sovereign rights, albeit
within limited fields, and the subjects of which comprise not only Member States but also
their nationals. Independently of the legislation of Member States, Community law therefore
not only imposes obligations on individuals but is also intended to confer upon them rights
which become part of their legal heritage…’. Already the earlier finding in ECJ Case 13/61
Bosch
[1962] ECR 45, at 49 (English special ed.), that the municipal law of a Member State
and ‘Community law constitute two separate and distinct legal orders’, clearly excludes that
it could be considered to be part of either national law or classical international law, and
underlines its special character. For a thorough analysis see: René Barents,
The Autonomy
of Community Law
, 2004, p. 167 et seq., 169. The principle of autonomy was first named
explicitly ECJ Case 6-64
Costa
v
ENEL
[1964] ECR 585 (English special ed.).
